B.J.E., Appellant/Cross-Respondent v. J.B.E., Respondent/Cross-Appellant. , 2016 Mo. App. LEXIS 954 ( 2016 )

In the Missouri Court of Appeals Eastern
District
DIVISION FOUR
B.J.E., ) No. ED103526
)
Appellant/Cross-Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Honorable Kristine A. Kerr
J.B.E., )
)
Respondent/Cross-Appellant. ) FILED: September 27, 2016
Introduction
B.J.E. (“Wife”) and J.B.E. (“Husband”) both appeal from a judgment of the motion court
on Husband’s motion for contribution from Wife. This appeal centers on the property
distribution in a dissolution judgment dissolving the parties’ marriage (the “Property
Distribution” and the “Dissolution Judgment”). The Dissolution Judgment required the parties to
sell the marital home, apply the proceeds to specific marital debt, and split “equally” any
shortfall if the proceeds did not fully satisfy the debt. Part of the debt was the parties’ pre-2007
tax liabilities (the “pre-2007 taxes”). The parties’ joint tax attorney settled with the taxing
authorities. Husband paid the full amount of the pre-2007 taxes. Upon Husband’s motion, the
motion court ordered Wife to repay Husband for her half of the pre-2007 taxes at a rate of $150
per month until the obligation was satisfied. (the “payment plan”). On appeal, Wife argues that
the provision of the Dissolution Judgment regarding the pre-2007 taxes was too indefinite to be
enforced and further argues that Husband’s voluntary payment of the entire tax liability
precluded any repayment liability for her half of the tax debt. Husband argues that the motion
court lacked authority to stay the judgment and implement a payment plan allowing Wife to
repay her half of the pre-2007 taxes over time.
The Dissolution Judgment allocating the parties’ debt was sufficiently definite to enforce.
Because the voluntary-payment doctrine does not apply, Wife is liable to Husband for her half of
the tax debt. Further, the motion court had no authority under Missouri law to modify the initial
Property Distribution of the Dissolution Judgment through the monthly payment plan. Thus, the
motion court misapplied the law. We reverse that portion of the motion court’s judgment
instituting the payment plan and remand for proceedings consistent with this opinion.
Factual and Procedural History
Husband and Wife obtained a divorce in 2007. Under the Dissolution Judgment, the trial
court divided the couple’s assets and debts, and ordered Husband to pay Wife maintenance. The
Property Distribution required the parties to sell the marital home. The proceeds from that sale
first went to satisfy specific debts, including “income tax liabilities for years prior to 2007.” If
the home-sale proceeds failed to satisfy the debt, Husband and Wife were ordered to make up
such a shortfall “equally.”
Years later, Husband filed a motion to modify his maintenance and for contribution 1 from
Wife to recover her portion of the pre-2007 taxes. Husband averred that he had “paid, in full, all
remaining shortfall indebtedness to the Internal Revenue Service and the State of Missouri.”
1
Husband’s motion also included a “motion for contempt” and a “Petition In Equity To Apportion Undivided
Marital Debts and Recoupment.” The motion court analyzed this issue only as a motion for contribution, and we
will do the same.
2
Husband sought an order compelling Wife to repay half of the pre-2007 taxes, as contemplated
by the Property Distribution.
The motion court granted Husband’s motion for contribution. The motion court found
that the couple’s joint tax attorney had negotiated a settlement for the pre-2007 taxes, after which
Husband paid $215,880 and Wife paid nothing. Thus, the motion court concluded that, under the
Property Distribution, Wife was required to pay half ($107,940) of the settlement. Despite
finding Wife responsible for half of the pre-2007 taxes, the motion court cited equitable reasons
and declared that Wife would be responsible for only $10,000.
The parties filed post-judgment motions, and the motion court subsequently amended its
judgment. The amended judgment again recognized Wife’s responsibility for half of the pre-
2007 taxes. The motion court acknowledged that it was bound under the terms of the Property
Distribution in the Dissolution Judgment, withdrew its previous order reducing Wife’s obligation
to $10,000, and entered judgment against Wife in the full amount of $107,940. The motion court
then stayed its judgment provided Wife paid the full $107,940 at a rate of $150 per month.
Husband was to deduct the $150 monthly payment from his ongoing maintenance payments to
Wife. The motion court reasoned that the large imbalance between Husband’s and Wife’s
financial conditions justified the monthly payment arrangement. Both parties appealed to this
Court.
Points on Appeal
Wife raises two points on appeal and Husband raises one point in his cross-appeal. Both
of Wife’s points argue that the motion court erred by ordering her to reimburse Husband for her
portion of the pre-2007 taxes. In Point One, Wife argues that the provision in the Property
Distribution relating to the pre-2007 taxes was too indefinite to be enforceable. In Point Two,
3
Wife asserts that the voluntary payment doctrine precludes Husband from seeking any repayment
of the tax liability from her. On cross-appeal, Husband posits that the motion court lacked
authority to modify the original Property Distribution by introducing a payment plan allowing
Wife to retire the debt upon her payment of $150 a month.
Standard of Review
In a court-tried case, the judgment must be affirmed unless there is no substantial
evidence to support it, it is against the weight of the evidence, or it erroneously declares or
applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accord great
deference to the motion court’s factual findings and credibility determinations. Pratt v. Ferber,
335 S.W.3d 90, 93 (Mo. App. W.D. 2011). “A motion court may believe or disbelieve all, or any
part of any witness’s testimony.” Id. We view the evidence, along with the reasonable
inferences therefrom, in the light most favorable to the judgment. Id.
Discussion
I. Wife’s Point One—Enforceability of the Property Distribution
Wife argues that the motion court erred in ordering her to pay half of the pre-2007 taxes
because the original Property Distribution was too indefinite to enforce. We disagree.
Generally, a money judgment must specify with definiteness and certainty the amount for
which it is rendered. Krane v. Krane, 912 S.W.2d 473, 475 (Mo. banc 1995). The traditional
rule states that, if the trial court found it necessary to consider external evidence to ascertain the
specific amount of the order, the order was considered too indefinite to be enforceable. Id. This
requirement of definite and certainty has been relaxed in the realm of dissolution orders and
decrees. Pratt, 335 S.W.3d at 94.
Our Supreme Court in Payne v. Payne recognized this relaxed standard. 635 S.W.2d 18
(Mo. banc 1982). There, the dissolution decree incorporated the parties’ property settlement
4
agreement. Id. at 20. The settlement agreement required the husband to pay the wife
maintenance of 15% of his total income for the preceding year, including $120 paid weekly and
the remaining money paid quarterly. Id. The wife moved to hold the husband in contempt for
failure to pay, and the husband argued on appeal that the judgment improperly required external
proof (of his income) to enforce. Id. at 21. The Supreme Court held that a maintenance
provision of a decree was valid and enforceable, despite being facially uncertain in amount,
because the “trial court may upon motion determine the exact amount due in accordance with the
agreement of the parties, and then, upon proper application proceed to enforce the judgment.”
Id. at 22 (quoting Bryson v. Bryson, 624 S.W.2d 92, 98 (Mo. App. E.D. 1981)).
Subsequently in Krane, a settlement agreement provided that the father would pay 100%
of medical expenses, 50% of the cost of tuition and school camp, and 100% of the increase in
costs for elementary and secondary schools for the parties’ children. Krane v. Krane, 912
S.W.2d 473, 475–76 (Mo. banc 1995). Regarding the medical expenses, the Supreme Court
construed “medical expenses” with the implied qualification that the term covered only expenses
that were reasonable and necessary as defined by the Internal Revenue Code. Id. at 475.
Further, the “100%” qualifier allowed the calculation of the amount due. Id. Thus, the
medicalexpenses provision was sufficiently certain to enforce. Id. Regarding the summer-camp
costs, the Court found that the costs were existing conditions. Id. at 476. “At that time, father
knew that his daughters were attending summer camps and no doubt had a good idea of their
cost. He agreed to pay one-half of that cost; that is perfectly clear and neither ambiguous nor
uncertain.” Id. (Internal quotation marks omitted.) The Krane Court recognized that the mother
or the daughters might select a more expensive camp or find other ways to increase the father’s
costs; in such situations, “the trial court could fashion appropriate relief.” Id. Finally, regarding
5
the tuition costs, the Court recognized that the parties knew the current cost of tuition, and that
the father agreed to pay 100% of the increase. Id. at 477. Thus, the cost of tuition could be
“reduced to pristine certainty, so as to be enforceable.” Id. Krane recognized the same problem
with tuition as occurred with the summer-camp expenses: the mother could move the daughters
to a different, more expensive school that would raise the father’s costs. Id. Again, if such a
situation occurred, trial court could consider it and fashion an appropriate remedy. Id.
We recognize that Payne and Krane involved settlement agreements regarding
maintenance and child support that were incorporated in the trial court’s decree. But this relaxed
standard also applies to property distributions in contested dissolutions. See Francka v. Francka,
951 S.W.2d 685 (Mo. App. S.D. 1997). After a bench trial in Francka, the trial court ordered the
husband to “pay any capital gains taxes which may occur as a result of the failure to properly
reinvest the proceeds from the fire.” Id. at 698. On appeal, the Court held that the term “capital
gains taxes” was no less certain than the “medical expenses” found in Krane, which could be
supplemented by the IRS’s definition of the term. Id. “The applicable subject for which those
taxes might be incurred, the fire insurance proceeds from the destruction of the parties’
residence, was readily identifiable.” Id. Because the husband was required to pay all of those
taxes, and because the subject for which those taxes were based was readily identifiable, the
Court found no uncertainty as to what the trial court intended the husband to pay. Id. Thus, the
trial court’s judgment was not so “indefinite, vague, uncertain and dependent upon a future
contingency” as to be unenforceable. Id.
Here, the underlying Dissolution Judgment ordered the proceeds from the sale of the
parties’ marital home to pay for “[s]ettlement, compromise, payment and conclusion of pending
State and Federal income tax liabilities for years prior to 2007.” The Dissolution Judgment
6
further provided, “Any shortfall resulting from the [proceeds of the home sale] shall be made up
equally by the parties.” We find “income tax liabilities for years prior to 2007” no less vague
than the capital gains taxes identified in Francka. The relevant subject of the Property
Distribution—the amount of the settlement for the pre-2007 taxes—was “readily identifiable.”
Francka, 951 S.W.2d at 698. In fact, the amount of the tax settlement is not disputed by the
parties on appeal: Husband paid $215,880 to settle the pre-2007 taxes. Not only was the amount
of the tax settlement readily identifiable, but the Property Distribution identified exactly how
much of that settlement Wife was to pay. Wife was responsible for the tax liability “equally.”
Thus, the motion court was perfectly capable of determining the “the exact amount due” from
Wife. See Payne, 635 S.W.2d at 22.
Because the Property Distribution was sufficiently definite under the relaxed standard for
dissolution judgments articulated by our Supreme Court, Wife’s Point One is denied.
II. Wife’s Point Two—Voluntary-Payment Doctrine
Wife next asserts that the voluntary-payment doctrine precluded the motion court from
ordering her to pay half of the pre-2007 tax settlement. Wife correctly notes that Husband paid
the total tax liability even though the original Property Distribution required him to pay only half
of the liability. Thus, Wife argues, Husband voluntarily paid her portion. We disagree.
The voluntary-payment doctrine is a recognized affirmative defense in actions involving
common-law claims for restitution of money. Wiley v. Daly, 472 S.W.3d 257, 261 (Mo. App.
E.D. 2015). The well-established doctrine arose out of equitable principles in England and was
first expressed by our Supreme Court in Claflin v. McDonough, 33 Mo. 412, 415–16 (Mo. banc
1863). In Claflin, a tax collector demanded that the plaintiffs pay an allegedly illegal tax. Id. at
414–15. Despite believing that the tax was illegal, the plaintiffs paid it anyway because of the
7
tax collector’s threat of prosecution. Id. Plaintiffs then sued the tax collector for return of the
illegal tax. Id. Finding for the tax collector, our Supreme Court articulated the basic
voluntarypayment doctrine:
The rule of law is well established, both in England and in this country, that a
person who voluntarily pays money with full knowledge of all the facts in the
case, and in the absence of fraud and duress, cannot recover it back, though the
payment is made without a sufficient consideration, and under protest.
Id. at 415.
Under the rule articulated in Claflin, the defendant’s voluntary-payment defense is
inapplicable if the payment was made after a mistake of fact, after a fraud, or while under duress.
Id. Our courts have created other exceptions, which are not relevant here, where application of
the voluntary-payment doctrine violates some public policy. See Wiley, 472 S.W.3d at 262–63
(detailing situations where the doctrine is inapplicable). After finding no duress, the Claflin
Court reasoned, “the plaintiffs paid the money with a full knowledge of all the facts and
circumstances, and well knowing that they were under no legal obligations to pay it. It must,
therefore, be regarded as a voluntary payment, and not a payment under duress.” Claflin, 33 Mo.
at 416 (emphasis added).
Stating the doctrine differently, someone who makes a payment “is a volunteer if, in
making payment, he or she has no right or interest of his or her own to protect and acts without
moral or legal obligation.” 70 C.J.S. Payment § 107 (2016). The underlying reason for the
doctrine is that it is inequitable to give the payor the privilege of selecting when and where to
challenge the payment. Huch v. Charter Communications, Inc., 290 S.W.3d 721, 726 (Mo. banc
2009) (relying on Am. Motorists Ins. Co. v. Shrock, 447 S.W.2d 809, 812 (Mo. App. K.C.
1969)). Giving the payor this control subjects the payee to “the uncertainties and casualties of
human affairs likely to affect his means of defending the claim.” Id.
8
Because the potential payor lacks a legal duty to pay in these situations, the payor’s
remedy to an illegal demand of payment is to refuse payment and to assert the lack of a legal
obligation as a defense if sued for that payment. What the payor cannot do is make a payment he
or she is not obligated to make and then sue for return of that payment.
For example, in Jurgensmeyer v. Boone Hosp. Ctr., the plaintiff’s adult son needed
treatment at the defendant hospital. 727 S.W.2d 441, 443 (Mo. App. W.D. 1987). The plaintiff
paid for his adult son’s medical expenses, but then sued the hospital later to recover the payment.
Id. The Western District affirmed the trial court’s dismissal of the suit. Id. at 444. The plaintiff
was not liable for the medical bills because his son was an adult. Id. Further, because the
plaintiff failed to properly plead 2 any allegations of fraud or duress, it could “only be concluded
that [the plaintiff] made payment as a volunteer.” Id.
In Smith v. City of St. Louis, Smith received a ticket from an automated red-light camera
and paid the fine. 409 S.W.3d 404, 419 (Mo. App. E.D. 2013). Smith subsequently sued the city
for unjust enrichment, seeking to recover the fine paid on the grounds that the ordinance
permitting the red-light camera was illegal. Id. Smith admitted that she “decided just to pay the
violation and move on.” Id. at 421. “While Smith’s decision to pay the fine very well may have
amounted to surrendering to the bureaucracy of municipal government, her testimony supports
but one finding: that her decision to pay the fine was voluntary.” Id. Because Smith voluntarily
paid her fine to the city, rather than refusing to make payment and asserting the ordinance’s
invalidity as a defense to the fine, the voluntary-payment doctrine precluded her from recovering
the fine in a later suit. See id.
2
The plaintiff, on appeal, argued that he paid under duress because the hospital conditioned treatment of his son on
his payment of the medical expenses. Id. at 443–44. The Court rejected this argument because of a pleading
deficiency. Id.
9
Here, Wife claims that Husband’s payment to the taxing authorities was also voluntary.
This argument is unavailing because the parties concede that Husband and Wife are jointly liable
for the full amount of the pre-2007 taxes. Husband’s payment was different than Chaflin,
Jurgensmeyer, and Smith because he was not a volunteer. Wife does not suggest that the pre-
2007 taxes were somehow illegal or unenforceable against both Husband and Wife. Further,
Husband did not pay a portion of the taxes for which only Wife was liable. While the Property
Distribution required the parties to share the pre-2007 taxes “equally,” that order did not change
the rights of the taxing authorities. The taxing authorities were entitled to collect the full amount
of the tax liability from either party because Husband and Wife were jointly liable on the debt.
By making payment, Husband (the payor) was protecting his interests and satisfying his tax
burden, which he was under a legal obligation to do. See 70 C.J.S. Payment § 107 (a volunteer
“has no right or interest of his or her own to protect and acts without moral or legal obligation”).
Thus, Husband cannot be considered a “volunteer.”
Because the voluntary-payment doctrine is inapplicable here, the motion court committed
no error. Wife’s Point Two is denied.
III. Husband’s Point—Payment Plan
The motion court, bound by the Property Distribution set forth in the Dissolution
Judgment, ordered Wife to repay Husband for half of the pre-2007 tax settlement. But the
motion court then stayed the judgment and allowed Wife to make installment payments of $150
per month. Husband argues that the motion court lacked authority to stay the judgment and
institute this payment plan because such action effectively modified the original Property
Distribution of the final Dissolution Judgment, which the motion court may not do. We agree.
10
We begin with the premise that the division of marital property in a dissolution judgment
is final and is not subject to future modification. Sections 3 452.330.5 4 and 452.360.2. Provisions
in a dissolution judgment concerning the eventual sale of a marital home and the distribution of
the resulting proceeds are considered a division of marital property. Stark v. Thierjung, 714
S.W.2d 830, 832 (Mo. App. E.D. 1986). The motion court reluctantly acknowledged this
fundamental principle by reversing its initial ruling that Wife was responsible to pay only
$10,000 of her $107,940 tax liability.
We therefore consider whether the motion court—by staying the judgment and creating
this payment plan—modified the Property Distribution of the Dissolution Judgment. The
Property Distribution required the proceeds of the home sale to be applied to settlement of “tax
liabilities for years prior to 2007.” Any “shortfall” from the application of the home-sale
proceeds to the tax settlement was to “be made up equally by the parties.” The parties’ joint tax
attorney settled the pre-2007 tax liabilities with the taxing authorities, which Husband
subsequently paid in full. The motion court has ordered Wife to pay half of the pre-2007 tax
settlement, but stayed execution of the order provided Wife pays $150 per month to Husband
towards her half of the tax liability. Husband argues that the payment plan constituted a
modification of the underlying Property Distribution. We cannot find, and the parties were
unable to provide, any cases factually on point.
Husband suggests Schaffer v. Haynes, 847 S.W.2d 814 (Mo. App. E.D. 1992) as
guidance. In Schaffer, the parties entered into a marital settlement agreement, which provided
wife receive a $70,000 payment, reduced by the relevant taxes, upon the sale of a building that
3
All statutory references are to RSMo (2000).
4
A limited exception to this rule, for qualified domestic orders, is not relevant to this appeal.
11
was under contract. Id. at 816. Husband later moved to set aside this payment because of mutual
mistake: the parties originally thought the building would yield profits of over $300,000, but the
profits were only $18,833. Id. The motion court agreed, found that a $70,000 payment would be
“inequitable and unfair,” and reduced the payment due to wife to $3,164. Id. at 817. On appeal,
we emphasized that the underlying divorce decree, which incorporated the property settlement
agreement, contemplated a gross payment of $70,000 minus applicable taxes. Id. We reasoned
that the motion court’s order was “essentially a modification of the distribution of marital
property,” which was strictly forbidden by statute. Id. Because the motion court improperly
modified the amount due to wife under the original judgment, we reversed. Id.
Schaffer is not entirely on point because it is factually distinguishable. Schaffer makes
clear that a motion court lacks authority to modify express obligations under a dissolution’s
property distribution, even if such obligations are “inequitable and unfair.” 847 S.W.2d at 817.
In Schaffer, the motion court changed the actual amount due to wife under the property
settlement agreement. Changing the original judgment’s express terms was clearly a
“modification” of the property distribution. We are cognizant that, here, the motion court
ordered Wife to pay the full amount as required by the Property Distribution ($107, 940), and did
not modify the express language of the Property Distribution.
Wife offers two cases, Burbes and Hurtgen, as support for its position that the “trial court
is vested with broad equitable powers in a marital dissolution to effectuate property settlements.”
Burbes v. Burbes, 739 S.W.2d 582, 585 (Mo. App. E.D. 1987); see Hurtgen v. Hurtgen, 635
S.W.2d 69, 70 (Mo. App. E.D. 1982). We agree. However, this proposition is true in an
original dissolution proceeding. In Burbes, the trial court awarded the husband a $25,000
judgment lien against the equity on the marital home, which was awarded to the wife. 739
12
S.W.2d at 585. But the trial court stayed execution until “60 days after the occurrence” of one of
a series of conditions. Id. We affirmed the trial court’s decision to stay its judgment and
implement conditions on the execution of the judgment lien because of the trial court’s broad
discretion in such matters. Id. at 585–86. In Hurtgen, we affirmed the trial court’s suspended
execution of a judgment lien on the marital residence until the couple’s child reached eighteenyears
old. 635 S.W.2d at 70.
Notably in both Burbes and Hurtgen, we deferred to the trial court’s discretion to fashion
the terms of the original marital property distribution. Here, the motion court attempted to
exercise similar discretion—to stay execution of a judgment based on certain conditions. Yet the
motion court did so in a post-dissolution proceeding. In Schaffer, we admonished the motion
court for considering the equity and fairness of an original property distribution in a post
dissolution proceeding. The General Assembly has made clear, in two separate statutes, that an
original property distribution is final and not subject to modification. Sections 452.330.5 and
452.360.2. This strict and unequivocal mandate of the legislature deprives a motion court of any
discretion to alter an original property distribution in post-dissolution proceedings. We are
persuaded that a motion court sitting in a post-dissolution proceeding must enforce an original
property distribution as written.
As written, the Property Distribution in the Dissolution Judgement required Husband and
Wife to equally share the pre-2007 tax liability. The judgment was silent about any stay or other
terms and conditions of payment. Under the Property Distribution, Husband was entitled to
enforce Wife’s obligation to share “equally” in the pre-2007 tax burden without restriction. In
the absence of controlling authority to the contrary, we hold that the motion court’s introduction
of terms and conditions not included in the Dissolution Judgment substantially altered Wife’s
13
obligation under the Property Distribution. 5 As such, we hold that the motion court’s payment
plan effectively modified the original Property Distribution in a post-dissolution proceeding.
The fact that the motion court’s order and judgment were entered in response to Husband’s
motion for contribution does not alter the fact that the stay of judgment and terms of payment
imposed by the motion court effectively and substantially changed the Property Distribution to
which Husband is entitled under the Dissolution Judgment. The motion court lacked authority to
make such a modification. Sections 452.330.5 and 452.360.2.
Because the payment plan improperly modified the Property Distribution, the motion
court exceeded its authority under statute. Husband’s point is granted.
Conclusion
The judgment of the motion court is affirmed in part, reversed in part, and the case is
remanded for proceedings consistent with this opinion.
________________________________
KURT S. ODENWALD, Judge
James M. Dowd, P.J., concurs.
Gary M. Gaertner, Jr., J., concurs.
5
Under the payment plan instituted by the motion court, Wife’s obligation would not be satisfied for approximately
60 years.
14